Harb v. Canada (Minister of Citizenship and Immigration)

** Translation **

Between
Shahir Harb, appellant, and
The Minister of Citizenship and Immigration, respondent

[2003] F.C.J. No. 108
2003 FCA 39
File A-309-02

Federal Court of Appeal
Montréal, Quebec
Décary, Noël and Pelletier JJ.A.

Heard: January 14, 2003.
Judgment: January 27, 2003.
(30 paras.)

Aliens and immigration — Admission, refugees — Disqualifications, crimes against humanity — Immigration, exclusion, particular persons — Members of a subversive or terrorist organization.

Appeal by Harb from a decision by the Refugee Division excluding him from the scope of the United Nations Convention Relating to the Status of Refugees. Harb was excluded on the basis of his membership in the Amal movement and his complicity in the South Lebanon Army. The Refugee Division held that Harb's testimony was not credible and that he had no well-founded fear of persecution within the meaning of the Convention. Harb submitted that the crimes with which he was charged were directed against military personnel rather than the civilian population and that he did not participate personally and knowingly in acts of persecution.

HELD: Appeal dismissed. The crimes alleged against the South Lebanon army were crimes against humanity. The exclusion applied against him even if the specific crimes committed by him were against a military population and were not crimes against humanity as such. The evidence indicated that Harb was aware that the South Lebanon army was a terrorist organization involved in crimes against humanity. The information given by him to the organization was not ordinary and he was paid a large sum of money for the information. He was an accomplice on account of his personal and knowing participation in crimes against humanity committed by the South Lebanon army and the Refugee Division was correct in excluding him under article 1F(a) of the Convention.

Statutes, Regulations and Rules Cited:

Federal Court Act, s. 18.1(4)(d).

Counsel:

Annie Bélanger, for the applicant.
Normand Lemyre and Mario Blanchard, for the respondent.

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The judgment of the Court was delivered by

1 DÉCARY J.A.:— Article 1F(a) of the United Nations Convention Relating to the Status of Refugees ("the Convention") excludes from the scope of this Convention "any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect to such crimes".

2 The Refugee Division found that the appellant was excluded on two counts, first because of his membership and activities in the Amal movement, and also because of his complicity in the South Lebanon Army (SLA), two organizations which in its view had been engaged in crimes against humanity.

3 The Refugee Division further found that in any event the appellant had no well-founded fear of persecution within the meaning of the Convention. It ruled that his fear was not of being persecuted but of being prosecuted for treason under general Lebanese law. It made the following comments about the credibility of the appellant's testimony:

[TRANSLATION]

The panel has had an opportunity to observe and hear the claimant testify. His testimony was vague, convoluted and hesitant, with few specifics and few dates. His replies were not spontaneous and questions had to be repeated several times. Although it believes he was a member of Amal and collaborated with the SLA, the panel found his testimony devoid of credibility for the following reasons.

4 The motions judge affirmed the Refugee Division's decision about the twofold exclusion. In so doing, she did not think it necessary to consider the question of non-inclusion.

5 The motions judge certified the following question:

1. For the purposes of Article 1F(a) of the United Nations Convention relating to the status of refugees concerning a crime against humanity, can military members or paramilitary members, who were not taking part in hostilities at the time they were persecuted or victims of inhumane acts, be considered a "civilian population" within the meaning of that term in the following provisions:

(a) Paragraph 6(c) of the Charter of the International Military Tribunal (following the London Agreement on August 8, 1945);

(b) Paragraph II(1)(c) of Law No. 10 dated December 20, 1945, of the Control Council for Germany.

(c) Article 5 of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991;

(d) Article 3 of the Statute of the International Tribunal For Rwanda;

(e) Paragraph 7(1) of the Rome Statute of the International Criminal Court?

6 At the hearing counsel for the respondent suggested that the reference to the Statute of the International Tribunal for the Former Yugoslavia and the Statute of the International Tribunal for Rwanda be deleted from the certified question. In his submission, these statutes are not really "international instruments" within the meaning of article 1F(a). Counsel for the appellant did not object to this proposition and, without ruling on the validity of the respondent's argument, the Court accepted his suggestion.

7 In the same breath, counsel for the respondent maintained that although the crimes alleged in the case at bar were committed between 1986 and 1993 the Rome Statute of the International Criminal Court, adopted on July 17, 1998 and in effect on July 1, 2002, was an international instrument which could be taken into account in defining "a crime against peace, a war crime or a crime against humanity" for purposes of the application of article 1F(a).The question could be important, in so far as article 7 of the Rome Statute contains a more up-to-date definition of "crimes against humanity".

8 In my opinion, it is clear that article 1F(a) should be interpreted so as to include international instruments concluded since it was adopted. Paragraph 150 of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, published in 1979 by the United Nations High Commission for Refugees, states that "There are a considerable number of such [international] instruments dating from the end of the Second World War up to the present time" (my emphasis).

9 I note that in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, Bastarache J., at para. 62 of his reasons, sought the meaning of the words "purposes and principles of the United Nations" in article 1F(c) of the Convention, giving "a dynamic interpretation of state obligations, which must be adapted to the changing international context". This approach applies just as much to the exclusion in article 1F(a). By not identifying the "international instruments", the authors of the Convention ensured that the definitions of crimes, the sources of exclusion, would not be fixed at any point in time. (See Guy S. Goodwin-Gill, The Refugee in International law, 2d ed., Oxford, Clarendon Press, 1966, p. 98; Lison Néel, La judiciarisation internationale des criminels de guerre: la solution aux violations graves du droit international humanitaire? (2000) 33(2) Criminologie, p. 166; Yann Jurovics, Réflexions sur la spécificité du crime contre l'hunmanité, Paris, Librairie Générale de Droit et de Jurisprudence, 2002, p. 9; "SRNN" and Department of Immigration and Multicultural Affairs, [2000] AATA 983 (November 10, 2000, Administrative Appeals Tribunal of Australia, par. 61)).

10 In the case at bar there is clearly no doubt that the crimes alleged against the Amal movement and the South Lebanon Army are crimes against humanity within the meaning of the Charter of the International Military Tribunal, Law No. 10 of the Control Council for Germany or the Rome Statute of the International Criminal Court. Counsel for the appellant did not disagree. Instead, she argued that the appellant himself had committed no crime against humanity because the crimes with which he was charged were directed against military personnel rather than the civilian population. She also contended that the two organizations (Amal and SLA) could not be described as organizations whose purposes were primarily to commit acts of persecution. Finally, she maintained that the appellant did not participate personally and knowingly in acts of persecution. She did not really try to persuade the Court ...

11 The first of these arguments does not apply in the case at bar. It is not the nature of the crimes with which the appellant was charged that led to his exclusion, but that of the crimes alleged against the organizations with which he was supposed to be associated. Once those organizations have committed crimes against humanity and the appellant meets the requirements for membership in the group, knowledge, participation or complicity imposed by precedent (see inter alia, Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.); Moreno v. Canada (Minister of Citizenship and Immigration), [1994] 1 F.C. 298 (C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.); Sumaida v. Canada (Minister of Employment and Immigration), [2000] 3 F.C. 66 (C.A.); and Bazargan v. Minister of Employment and Immigration (1996), 205 N.R. 232 (F.C.A.)), the exclusion applies even if the specific acts committed by the appellant himself are not crimes against humanity as such. In short, if the organization persecutes the civilian population the fact that the appellant himself persecuted only the military population does not mean that he will escape the exclusion, if he is an accomplice by association as well.

12 There is thus no need to answer the certified question and I express no opinion on the reply given by the judge.

13 The appellant accordingly fell back on objecting, in the case of the Amal movement, to the Refugee Division's conclusion that this movement was [TRANSLATION] "a violent organization for which the ends justified the means, and whose purposes were brutal" and the conclusion that the appellant was an active member of the movement and, in view of his position and responsibilities, necessarily had to be aware of the crimes against humanity committed by the movement. In the case of the SLA, the appellant objected to the conclusion by the Refugee Division that the organization was [TRANSLATION] "a terrorist organization with limited and brutal purposes" and to its other conclusion that the appellant was [TRANSLATION] "an accomplice in the crimes against humanity committed by the SLA".

14 In so far as these are findings of fact they can only be reviewed if they are erroneous and made in a perverse or capricious manner or without regard for the material before the Refugee Division (this standard of review is laid down in s. 18.1(4)(d) of the Federal Court Act, and is defined in other jurisdictions by the phrase "patently unreasonable"). These findings, in so far as they apply the law to the facts of the case, can only be reviewed if they are unreasonable. In so far as they interpret the meaning of the exclusion clause, the findings can be reviewed if they are erroneous. (On the standard of review, see Shrestha v. The Minister of Citizenship and Immigration, 2002 FCT 886, Lemieux J. at paras. 10, 11 and 12.)

Complicity by association

15 We should first recall what complicity by association in the context of article 1F(a) of the Convention actually means.

16 In Ramirez, supra, Moreno, supra, and Sivakumar, supra, this Court dealt with complicity by association by persons who were members of the organization involved.

17 In the case at bar, the appellant was not a member of the SLA, but in Bazargan, supra, this Court held that the rules relating to complicity of a member applied to complicity by a non-member, mutatis mutandis. It is true that in Bazargan it was article 1F(c) of the Convention that was at issue, but I see no reason not to apply to article 1F(a) the principles regarding complicity followed with respect to article 1F(c). The analogy is such, between "acts contrary to the purposes and principles of the United Nations" (article 1F(c)) and "crime[s] against humanity" (article 1F(a)), that there is no danger of distorting the concept of "complicity" by applying it to either one.

18 In Bazargan, complicity by association was described as follows, at 287:

[11] In our view, it goes without saying that "personal and knowing participation" can be direct or indirect and does not require formal membership in the organization that is ultimately engaged in the condemned activities. It is not working within an organization that makes someone an accomplice to the organization's activities, but knowingly contributing to those activities in any way or making them possible, whether from within or from outside the organization. At p. 318 F.C., MacGuigan, J.A. said that "[a]t bottom complicity rests ... on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it". Those who become involved in an operation that is not theirs, but that they know will probably lead to the commission of an international offence, lay themselves open to the application of the exclusion clause in the same way as those who play a direct part in the operation.

[12] That being said, everything becomes a question of fact. The Minister does not have to prove the respondent's guilt. He merely has to show – and the burden of proof resting on him is "less than the balance of probabilities" (Ramirez, supra, at p. 314 F.C.) – that there are serious reasons for considering that the respondent is guilty ...

19 As the Court noted in Bazargan at 286, membership in a group makes it easier to conclude that there was "personal and knowing participation" – which remains the first test – than when there was no membership, but the difference affects the evidence, not the principles. Counsel for the respondent would like the Court to clarify what is meant by "membership in a group". I do not think this is necessary. The expression was used in Ramirez in the context of a member whom the Court described as "active". The expression suggests the existence of an institutional link between the organization and the person, accompanied by a more than nominal commitment to the organization's activities. As everything is a question of fact, at the end of the analysis I feel that it is better to speak in terms of participation in the group's activities than of membership in the group.

Analysis

20 The appellant must succeed in both of his challenges against the Amal movement and the SLA. If he fails in either respect, this will suffice for his exclusion to be maintained.

21 I will begin with the SLA.

22 The appellant quite hesitantly challenged the Refugee Division's conclusion that the SLA was an organization with brutal and limited purposes. The only argument he made in this respect was the fact that in another case, a Refugee Division with different members came to a contrary conclusion. That argument is without merit. Each case is assessed on the basis of the evidence presented. Unless the appellant can show how in the case at bar the evidence could not support the Refugee Division's finding, he cannot ask the Court to question the finding.

23 Instead, the appellant challenged the conclusion that he was an accomplice by association in the crimes against humanity committed by the SLA. His principal argument rested on the premise that the information he gave concerned not civilians, but military personnel. As I said earlier, this is a false premise.

24 The appellant further argued that he believed the information he was giving would not harm the persons he was reporting, and that to his knowledge none of them were actually arrested, imprisoned or tortured.

25 That argument cannot be accepted. First, it assumes that the appellant's testimony on this point is credible. In the opinion of the Refugee Division, it was not. Second, this argument has already been dismissed by this Court in Sumaida, supra.

26 Finally, the appellant maintained that there was no evidence he supported the objectives adopted by the SLA. It will be recalled that Ramirez required "the existence of a shared common purpose and the knowledge that all of the parties in question may have of it" (at 318). The appellant referred to the passage in his testimony where he said he did not [TRANSLATION] "support the aims of the South Lebanon Army" (a.r., vol. 1, p. 321).

27 A simple denial – even if it was found credible, which it was not – cannot suffice to negate the presence of a common purpose. A plaintiff's actions can be more revealing than his testimony and the circumstances may be such that it can be inferred that a person shares the objectives of those with whom he is collaborating. Here, at pp. 193 and 194 of vol. 1 of the appeal record, the Refugee Division made the following finding:

[TRANSLATION]

Questioned about whether he knew what Fadi or the SLA was doing with information he was giving them, his replies were convoluted and difficult, and often consisted of saying that he did not know. Accordingly, he testified he did not know what operations the SLA was conducting against civilians or what operations Amal was conducting against Israel, he did not know what the SLA was doing with the information he gave on members and persons in responsible positions in Amal, or what was being done by the SLA with the persons he reported. The panel found it unlikely that the claimant, who worked in the information sector at the Amal headquarters for seven years, did not know about these operations which were reported in newspapers around the world, and did not have the slightest suspicion about the treatment inflicted by the SLA on its opponents. His testimony about the notorious Khiam prison in Lebanon was also not consistent. He began by saying that he had heard of it vaguely and later stated that he did know of its reputation when he joined the ranks of Amal in 1999, then admitted that people arrested by the SLA were taken to the Khiam prison where they were abused, but he knew that the military personnel he reported would not be taken there.

p. 193

As to his cooperation with the SLA, the documentary evidence described that organization as a terrorist one for limited and brutal purposes, of which the claimant was aware, and one which was responsible among other things for uprooting tens of thousands of civilians, destroying houses, taking hostages for use as a medium of exchange, torture and brutality in the Khiam prison. The informers who worked for that organization played an important part. Although he tried to minimize his role, the claimant was one of them. The panel considers that the information he gave the SLA was not ordinary, as he persisted in describing it, otherwise he would not have received a large sum of money – compared with the average income in Lebanon – every month for over a year.

The panel feels he was an accomplice on account of his personal and knowing participation (as confirmed in Ramirez v. Canada) in crimes against humanity committed by the SLA, and that he is accordingly excluded under article 1F(a).

p. 194

28 In view of the evidence in the record, the appellant's testimony and his lack of credibility, that inference was not unreasonable.

29 As no error of law or reviewable error of fact was shown in the Refugee Division's conclusions about the appellant's complicity by association in the international crimes committed by the South Lebanon Army, the motions judge was right not to intervene. That suffices to dispose of the appeal and it is not necessary for me to rule on the other basis for exclusion, resulting from the appellant's participation in the Amal movement.

30 The appeal should be dismissed with costs.

Certified true translation : Suzanne M. Gauthier, C. Tr., LL.L.

* * * * *

JUDGMENT
The appeal is dismissed with costs.

Certified true translation : Suzanne M. Gauthier, C. Tr., LL.L.